## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-71,535-02

EX P ARTE CHRIS JOH N UTTON, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 704979-B IN THE 209T H DISTRICT COURT

F ROM HARRIS COUNTY

Per curiam . Y E A R Y , J. fi led a concurring opin ion in wh ich S L A U G H T E R , J. joined. N E W E L L , J. concurre d. O R D E R Applicant wa s convicted of murder a nd sentenc ed to fifty -three y ear s’ imprisonment. The First Court of Appea ls aff irmed Applicant’s conviction. Utton v. State , No. 01-99-00018- CR (Tex. App.— Houston [1st Dist.] Oct. 7, 1999). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. This application was file-stampe d in Har ris County on Marc h 25, 2009. A n o r d e r desig nating issues was signe d by the trial judge on April 24, 2 0 0 9

. T h i s application was not rec eived by this Court until September 19, 2022. There is no indication in the rec ord of any action by the trial courtafte r the order desig nating issues was signe d. Nor is there any indication as to why this application

was pe nding in Ha

rris County

for so long without any

action by the cler k or the trial c ourt. Applicant contends that appellate counsel failed t o timely inform Applicant that his conviction had been affirmed and advise him of hi s rig ht to file a pro se petition for discretionary revie w. Applicant has alleg ed facts that, i f t rue, might entitle him to relief

. Ex parte W

ilson , 956 S.W .2d 25 (Tex. Crim. App. 1997); Ex parte Crow , 180 S.W .3d 135 (Tex. Crim. Ap p . 2005).Ac cording ly , the re co rd should be develope d. The trial court is the appropr iate forum for finding s of fa ct. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. As a pre liminary

matter, the trial court shall make finding s of fa ct as to why no action wa s t ak en b y t h e trial court or the cler k betwee n the entry of the order desig nating issues and th e forwa rding of the application to this Court. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the supplemental rec ord. I f the trial court is una ble to obta in suc h a response from Applicant, the trial court shall state w hat ef

forts we re ma de to obtain a r esponse f rom Applicant. I f Applicant indicates that he does want t o p u rs u e t h i s application, or if the trial court is unable to obtain a response from Applicant as to whether he wants to pursue the application, the trial court shall order appellate counsel to r espond to A pplicant’s claims. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to hold a hear ing, it shall dete rmine whe ther Applica nt is indig ent. I f Applica

nt is indi g ent and wa

nts to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is a ppointed or reta ined, the trial court shall immediately notify this Court of counsel’s name

. The tri al co u rt shall make finding s of fac t and conclusions of law as to whether appellatecounsel timely informed Applicant that his conviction had been aff irmed and that he had a rig ht to file a pro se petition for discretionar y revie w. The trial court shall also deter mine whether Applicant would have timely filed a petition for discretionar y revie w b u t for appellate counsel’s alleg ed defic ient perf

ormanc e. The trial court may make any other finding s and conclusions that it de ems appropr iate in re sponse to Applicant’s c laims. The trial court shall make findings of fac t an d conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, mot i ons, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court. Filed: De cembe r 7, 2022 Do not publish